(A translation and elaboration of this. )
Mishna, BT Sukka 11a:
This is the general rule: whatever is susceptible to impurity or whatever does not grow from the ground, may not be used for the s’chach, but whatever is not susceptible to impurity but grows from the ground may be used for the s’chach.
The Gemara (11b) elaborates:
How do we know this? Resh Lakish said: Scripture says, “But there went up a mist from the earth.” Just as a mist is a thing that is not susceptible to [ritual] impurity and originates from the soil, so must the s’chach be of something that is not susceptible to [ritual] impurity, and must also grow from the ground. [Reish Lakish’s opinion] is satisfactory according to the authority who says that [the booths of the wilderness were] Clouds of Glory, but according to the authority who says [the Israelites] made for themselves real booths, what can one say? It has been taught: “For I made the children of Israel to dwell in booths” (Leviticus 23:43). These were clouds of glory, so Rabbi Eliezer. Rabbi Akiva says, they made for themselves real booths. Now this is satisfactory according to Rabbi Eliezer, but according to Rabbi Akiva, what can one say? — When R. Dimi came, he explained in the name of Rabbi Johanan that Scripture says, “The Festival of Sukkoth shall you keep (lit., make).” The sukka is thus compared to the Festival [offering]. Just as the Festival offering is a thing which is not susceptible to impurity and grows from the soil, so too must the sukka be unsusceptible to impurity and grow from the soil. And if [you will suggest]: Just as the Festival offering was a live animal so too must the sukka be [of something which is] alive, [it may be replied that] when Rabin came, he said in the name of Rabbi Johanan that Scripture says, “After that you have gathered in from your threshing-floor and your winepress” (Deuteronomy 16:13) .The verse thus speaks of the leavings of the threshing-floor and the leavings of the wine-press.
In order to understand Reish Lakish’s opinion, we should give some background. The sages recognized a number of categories of materials:
1. Susceptibility to impurity: According to Torah law, people, keilim (lit. implements, including but not limited to tools, vessels, and garments), and foodstuffs are susceptible to ritual impurity, but living creatures, raw materials, and things attached to the ground are not. Basically, insusceptibility to impurity is a status enjoyed by substances and things that have not been corrupted by human hands. The Clouds of Glory fit the insusceptibility category.
2. Natural source: Things are either domem (inanimate), tzomeiah (vegetative), hay (living), or m’dabber (sentient). Only humans fit into the last category, while clouds fit the inanimate category.
3. Propagation: some things are qarqa, naturally part of the earth, like most inanimate objects, while others are giddulei qarqa, they grow from the earth, and still others, like animals, grow on their own. According to the second chapter of Genesis, clouds form from vapors that rise from the ground.
Therefore, the sages sought materials that came from the ground, yet were inanimate, and like the Clouds of Glory, not susceptible to impurity. Only s’chach has all of those features. It grows from the ground, yet once it has been disconnected from the ground, it is inanimate, and as long as it is not fashioned into any form of implement, it is insusceptible to impurity.
It seems that according to Reish Lakish and Rabbi Eliezer, ideally s’chach should be made out of clouds, but because it is completely impractical to do so, we use the next best thing.
This gemara has troubled me for many years, because it seems that according to Rabbi Akiva’s understanding of Leviticus (23:43), the Israelites lived in sukkoth, booths, during their 40-year sojourn, yet, throughout the rest of the Bible, we read about how they dwelled in ohalim, tents. Not withstanding that in poetic contexts, “tent” and “booth” are used as synonyms for a dwelling (see Psalms 27), in the halachic context of the definition of sukkoth, it is clear from the rest of the first chapter of tractate Sukka that an ohel is a solid covering, usually cloth or leather, spread out over an area and supported by a skeletal structure, whereas a sukka is vertical m’hitzoth, walls, of a minimum height that are roofed by something, such that the classic tent would be invalid as a sukka.
Even more so, we find that a number of authorities also did not follow this Gemara. If you open your standard hummash to the verse under discussion, Leviticus 23:43, you will find that both Onqelos and Rashi follow Rabbi Eliezer. Onqelos translates “for I made the children of Israel to dwell in booths” as “for I made the children of Israel to dwell in booths of clouds,” And Rashi, commenting on the words “for in booths” is very succinct: “Clouds of Glory.” Neither major commentator makes mention of Rabbi Akiva’s interpretation: They made real booths, as opposed to Clouds of Glory. And that is not the only place where Rashi endorses Rabbi Eliezer’s opinion and implicitly discounts Rabbi Akiva’s. On the first page of the tractate, Rashi, when describing an exposition derived from that verse, says the simple meaning of the words “so that they know… booths…” means that the Israelites dwelt in the Clouds of Glory, but the d’rasha, exposition, from that verse is that the booths we make in their memory not exceed a certain height, so that we can notice them. Surely Rashi and Onqelos were also aware of Rabbi Akiva’s position!
Further, the Zohar calls the sukka the tzilla dimheim’nutha, the Shadow of the Trustworthy One. That is, the sukka represents a godly form of protection, the Clouds of Glory, and not just sticks and leaves made into a hut. Thus, the Zohar was not troubled by the Gemara’s challenge to Reish Lakish. And neither was the Vilna Gaon, who, in answer to the question as to what historical event happened on the 15th of Tishrei as to warrant a holiday being established thereon, said that Sukkoth is the anniversary of the return of the Clouds of Glory to the Israelite camp after they had been removed due to the Sin of the Golden Calf. According to Rabbi Akiva, who held that the sukkoth were actual booths, the Vilna Gaon would need to give a broader answer.
We thus see that these four major authorities, Onqelos, Rashi, the Zohar, and the Vilna Gaon, believed that Leviticus 23:43 refers to the Clouds of Glory, and none seem bothered by the Gemara’s question.
I believe the answer lies in how the source midrash is presented in the Babylonian Talmud. In the original texts in our possession, Rabbi Eliezer and Rabbi Akiva switch opinions, Rabbi Akiva claiming the booths were the clouds of glory, while Rabbi Eliezer claims that they were actual booths, or in Hebrew, sukkoth mammash hayu. Notice, even more importantly, that the verb is not asu lahem, they made for themselves, but rather hayu, were. The Gemara has it that they made booths, but the original midrash says that the significant sukkoth just were. Then when we look at the corresponding discussion in the Yerushalmi, we find something even more intriguing (TY Sukka 1:5):
Rabbi Yohanan said, it is written, “After that you have gathered in from your threshing-floor and your winepress.” From the waste that is in the threshing floor and the winepress shall you make for yourself s’chach. Rabbi Shimon (Reish) ben Lakish said, “But there went up a mist from the earth.” Rabbi Tanhuma said, “he holds according to his own opinion, and he holds according to his opinion. Rabbi Yohanan, who said the clouds were above [the Israelites], derives the rule of the s’chach from the ‘you have gathered’ verse, whereas Reish Lakish, who said the the clouds were below [the Israelites], derives it from the verse describing clouds.
This discussion teaches us three important points. The first is that whereas in the Bavli, Rabbi Yohanan’s opinion is brought by others, R’ Dimi and Ravin, who happen to disagree on what exactly Rabbi Yohanan said, in the Yerushlami Rabbi Yohanan speaks for himself. The second is that in this version of the discussion, Rabbi Yohanan and Reish Lakish agree that the s’chach is an approximation of the clouds of glory that protected the Israelites. (See Korban Ha’eda’s commentary to this passage.) Thirdly, the difficulty raised in the BT is not brought against either Reish Lakish or Rabbi Yohanan. Shouldn’t the discussion between them also fit with the opinion that the booths of the desert were actual booths?
I always figured that if Rabbi Eliezer (or Rabbi Akiva) were correct, he’s not referring to the dwellings the Israelites used for 40 years, but rather to a particular place. Some seven years ago, I heard one of the Rabbis Zilberman describe the significance of the fact that Jacob’s first station within Canaan was called Sukkoth (Genesis 33:17), and how the Israelites’ first station on the way out of Egypt was also called Sukkoth (Exodus 12:37, Numbers 33:5-6). There was something special about the fact that they had made that first leg of the journey. Sukkoth represent the beginning of the transition to the holy land. Even though the Israelites lived in tents, the remarkable and miraculous aspect that we commemorate on the festival is that they were truly protected by the Clouds of Glory. And that is why we specifically build sukkoth with s’chach, and not tents. That is why the Torah says to dwell ba-sukkoth, in the booths. Not just b’sukkoth, in (any) booths.
The Yerushalmi, Onqelos, Rashi, the Zohar, and the Vilna Gaon therefore believed that the Holiday of Sukkoth commemorates the protective clouds of glory, and like the masters who bring their opinions in the Yerushalmi, the s’chach is supposed to approximate those clouds, and the halacha follows that approach. However, either Rabbi Eliezer or Rabbi Akiva also added something: We must always remember that a place called Sukkoth was our fist stop on the path of freedom. We remember the place that was, sukkoth hayu. The Bavli, however, had a different version of the Midrash, one that says the Israelites made sukkoth, and therefore did not entertain that Sukkoth was the name of a place.
This lesson is often lost on us. Most of those who try to have the right intentions and thoughts when fulfilling the commandment are aware of the aspect of divine protection, but few are aware of the aspect of the sukka acting as a stop along the path to Redemption. May the holiday os sukkoth prompt many of our brethren in the diaspora to bring themselves closer to living in the Holy Land.
משנה סוכה יא. זה הכלל כל שהוא מקבל טומאה ואין גידולו מן הארץ אין מסככין בו וכל דבר שאינו מקבל טומאה וגידולו מן הארץ מסככין בו:
גמרא יא: מה”מ אמר ריש לקיש אמר קרא (בראשית ב) ״ואד יעלה מן הארץ וכו׳״ מה אד דבר שאינו מקבל טומאה וגידולו מן הארץ אף סוכה דבר שאין מקבל טומאה וגידולו מן הארץ. הניחא למ”ד ענני כבוד היו אלא למ”ד סוכות ממש עשו להם מאי איכא למימר? דתניא (ויקרא כג) ״כי בסוכות הושבתי את בני ישראל״ ענני כבוד היו דברי ר’ אליעזר ר”ע אומר סוכות ממש עשו להם. הניחא לר”א אלא לר”ע מאי איכא למימר? כי אתא רב דימי א”ר יוחנן אמר קרא (דברים טז) חג הסוכות תעשה לך מקיש סוכה לחגיגה מה חגיגה דבר שאינו מקבל טומאה וגידולו מן הארץ אף סוכה דבר שאינו מקבל טומאה וגידולו מן הארץ. אי מה חגיגה בעלי חיים אף סוכה נמי בעלי חיים? כי אתא רבין אמר ר’ יוחנן אמר קרא (דברים טז) באספך מגרנך ומיקבך בפסולת גורן ויקב הכתוב מדבר…
משמע שלמרות שלפי ריש לקיש הסכך, שהוא עיקר מצות סוכה, אמור להיות מחומר דומה לסוכות המדבר, ומזה נלמד הלכות הסכך, ודעתו רק עולה עם שטה אחת בקרב התנאים, וצריכא טעמיה דרבי יוחנן כדי להסביר טיב הסכך לפי מאן דאמר סוכות ממש עשו להם.
ותמיד היה קשה לי, חוץ מהאי קרא כי בסוכות הושבתי לא מצינו שישבו בני ישראל במסעיהם בסוכות אלא באהלים.
ועוד קשה לדברי רש׳׳י על אותו הפסוק, ששם מפרש סוכות – ענני הכבוד, ובריש פרקין על דברי רבה, סוכה שהיא גבוהה למעלה מעשרים אמה פסולה, מנה”מ אמר רבה דאמר קרא (ויקרא כג) למען ידעו דורותיכם כי בסוכות הושבתי את בני ישראל עד עשרים אמה אדם יודע שהוא דר בסוכה למעלה מעשרים אמה אין אדם יודע שדר בסוכה משום דלא שלטא בה עינא, ורש׳׳י מפרש, עשה סוכה שישיבתה נכרת לך דכתיב כי בסוכות הושבתי צויתי לישב הכי דריש ליה ואע׳׳ג דאין יוצא מידי פשוטו דהיקף ענני כבוד מיהו דרשינן ליה לדרשה עכ׳׳ל. ולא הוה ליה לרשי למימר דא אלא להאמיענן שהסוכות היו ענני הכבוד על פי הפשט, ונקשה על רש׳׳י כמה שהקשינו על ריש לקיש. ועוד, מתרגמינן כי בסוכות הושבתי ארי במטלת ענני אותיבית, דהיינו כי בסוכת ענני הושבתי, והתרגום אינו כדברי מאן דאמר סוכות ממש עשו להם. ועוד, על פי חכמת הקבלה הסוכה מהווה צלא דמהימנותא, דהיינו צלו של הקב׳׳ה היינו ענני כבודו ית׳ ולא סוכות ממש. ויש גם להקשות על דברי הזהר. ועוד, הגר׳׳א אומר שהחג נקבע דווקא בט׳׳ו לחודש השביעי כי בו ביום שבו ענני הכבוד למחנה ישראל, ולדבריו, סוכות לא היו של ממש.
יוצא שלכל הני רבוותא, אונקלוס, רש׳׳י, הזהר, והגר׳׳א סוכות ממש היו, ולא כתלמודנו.
ויש לומר, כי באמת מחלוקת רבי אליעזר ורבי עקיבא אינה כפי שהיא מופיעה אצלנו, אלא במקור, במדרש תורת כהנים, אתחלפא הגרסא, מי אמר מה, ועוד שסוכות ממש היו, ולא עשו להם. ובסוגיא בירושלמי סוכה א:ה, יוצא שגם לריש לקיש גם לרבי יוחנן הסכך בא במקום ענני הכבוד, וז׳׳ל, א”ר יוחנן כתיב (דברים טז) באספך מגרנך ומיקבך. מפסולת שבגורן ושביקב את עושה לך סכך. רשב”ל אמר (בראשית ב) ואד יעלה מן הארץ. א”ר תנחומה דין כדעתיה ודין כדעתיה. ר’ יוחנן דו אמר עננים מלמעלה היו דו יליף לה מאספך. רשב”ל אמר עננים מלמטן היו דו יליף לה מעננים.
ויש גם לראות שבירושלמי, איכא דבריו ממש של רבי יוחנן, ואילו בתלמודא דידן דברי רבי יוחנן מובאים מאת ר׳ דימי ורבין.
ונלע׳׳ד, שלכולי עלמא סכך הסוכה בא במקום ענני הכבוד, ובאמת המצוה המהודרת היא עם עננים, אלא היכא דלא אפשר לא אפשר, ויש לקחת במקומם החומר הכי דומה להם, וכן הבינו אונקלוס, והזהר, ורש׳׳י, והגר׳׳א. ובקשר לשיטת התנא במדרש, שסוכות ממש היו, ולא עשו, יש לפרש כפי ששמעתי מפי הרב זילברמינץ על עניין חנייתו של יעקב אבינו במקום בשם סוכות בדרכו לארץ אחרי עמדו לפני עשו (בראשית לג,יז), ומעשה אבות סימן לבנים, שבני ישראל התיישבו ברעמסס בארץ גשן, וממחרת הפסח יצאו מרעמסס והתחנה הראשונה שלהם היתה בעוד מקום בשם סוכות (שמות יב,לז). ועניין הסוכות בא על פי הרמז לשלב בתהליך הגאולה. וי׳׳ל שבמדרש, בא התנא בתרא להשמיענו שיש גם לזכור בשעת מעשה המצווה שחנינו באותו המקום בלילה הראשון של חרות, והוא נקרא סוכות על שם ריבוי סוכותיו הנמצאות שם. והבבלי הקשה על רשב׳ל ע׳׳פ גרסה אחרת שלא היו בידי בעלי המדרש, והירושלמי, ורש׳׳י, וכו׳.
When does a fast end? You may have noticed that the modern printed calendars offer a number of alternatives. For example, the Ittim L’vina calendar gives three, all claculated as some time after sunset. Here is how the issue is presented in the Talmud (Taanith 12a):
R. Hisda further said: A fast over which the sun has not set cannot be deemed a fast. An objection was raised against this. The men of the watch fast but do not complete [the day]. [Their fasting] is merely in order to afflict themselves [in sympathy with the community].
Seemingly, R’ Hisda means to say that a fast should go on until sunset, but it does not need to go beyond that. In early halachic literature, the running assumption is that the fast ends when the day ends, which is usually assumed to be sunset.
There is another source in the Yerushalmi that says that when the moonlight is bright enough to shine on the earth, the fast is certainly over. On the tenth of Teveth or the ninth of Av, when the moon is basically large and high in the sky shortly after sunset, this threshold is reached not considerably later.
Here is where the issue becomes kind of fuzzy. As we mentioned earlier, Rabbeinu Tam’s position concerning a second sunset was widely accepted, and therefore for many years the practice followed his opinion, namely that a fast is only out at the end of that second “sunset”, at what Rabbeinu Tam deemed nightfall, roughly an hour after the nightfall described by the G’onim and Maimonides. Therefore, for example, the Tur and the Shulhan Aruch declare that public fast days end at what they call nightfall, which is much later than what is now the standard practice, while Maimonides and other Rishonim would tell you that the fast comes to an end actually at sunset. We also read about the influence of the Vilna Gaon and the Chofetz Chaim led to a renaissance for the use of the old system of calculating times based on actual sunset and sunrise, we would think that the old practice of ending fast days at sunset would have also made a comeback, but instead the calendars use a strange compromise: fast days end at nightfall, as per Rabbeinu Tam’s position, but nightfall is defined according to the G’onim’s position, and because it is a later compromise, it does not fit with a classic understanding of the sources. A practical example: if the sun were to set at 6pm on Tzom Gedalya, then according to G’onim the fast would end at sunset,* while according to Rabbeinu Tam and the Shulchan Aruch it would end about an hour later, while the calendars say that the fast would be over at 6:18., 6:27, or 6:36pm.
This is yet another example of what we have seen in other cases about how tzeith hakochavim, nightfall, used to only matter for purification, the departure of the sabbath and holidays, and for reading the sh’ma, but came to be the time for the performance of other commandments.
*Public policy would likely be to wait a few minutes after that because of the common cases of when it might be difficult to determine exactly when the sunsets, but it would not need to be more than a few minutes, because on most days the sunset is visible, and even when it is obscured, darkness begins to set in.
It has been taught: R. Simeon b. Eleazar says: Ezra enacted for Israel that they should read the curses in Leviticus before Pentecost and those in Deuteronomy before New Year. What is the reason? — Abbayei – or maybe Resh Lakish – said: So that the year may end along with its curses. I grant you that in regard to the curses in Deuteronomy you can say, ‘so that the year should end along with its curses’. But as regards those In Leviticus — is Pentecost a New Year? — Yes; Pentecost is also a New Year, as we have learned: ‘Pentecost is the new year for [fruit of] the tree’.
In practice this means that we read B’huqqothai (the section in Leviticus with the curses, commonly known as the tochaha) before Pentecost, and Ki Thavo, which has the latter tochaha, the second to last week of the year.
Now, why specifically would the curses of Leviticus be prescribed for the Pentecost season, while the Deuteronomic curses be saved for New Year’s? The Maharsha offers the following in response to the Tosafists’ analysis of some of the finer points related to our annual cycle of Torah reading. (For instance, in years such as 5776, why do we separate the already short parasha of Nitzavim-Wayeilech into two even shorter readings, and not separate the unusually long double reading of Mattoth-Masei?):
The main challenge should be that since Rosh Hashana is the beginning of the year, he should start [the reading cycle] with Genesis, which is the beginning of the Torah and the creation of the world, and he should do this immediately, [i.e.] on the first Sabbath after Rosh Hashana. And the answer [of the Talmud] is so that the year should end with its curses, etc. [i.e., the parasha with the curses should precede Rosh Hashana by a little more than week.]
The problem is that the Maharsha’s explanation assumes that we would be able to read according to this approximate weekly schedule every year. However, the Talmud previously mentioned:
If it [the New Moon of Adar] falls on the portion next to it [the portion of Sh’qalim], whether before or after, they read it and repeat it’. Now this creates no difficulty for one who holds that Ki Thissa is read because [the regular portion containing this passage] falls about that time. But according to the one who says that passage of the daily offering (from Pin’has) is read — does [the portion containing that passage] fall about that time? — Yes, [sometimes] for the people of Palestine, who complete the reading of the Pentateuch every three years.
That is, it makes sense that we could time our annual cycle such that the end of Leviticus is read before Pentecost and the end of Deuteronomy is read at the end of the year, but for those (ancient) Israelis who complete the Torah-reading cycle once every three years, it could not be done. It seems that either those special readings of the curses, like the other seasonal readings (Zachor, Sh’qalim, etc.) were not read as the maftir readings appended to the weekly readings, but rather as readings that substituted for the weekly Sidra, or that the curses were read as the maftir readings appended to the weekly readings of the triennial cycle. A triennial cycle would require about three times as many weekly readings as we have today, but it would also allow for much shorter readings, readings that could be studied more in depth every week due to their brevity. In the introductions to the early editions to the Koren bible, the editors pointed out that the simanim, the notes that were used to divide the books of the bible before the usual chapters that the printers introduced, may have been the markers for the old cycle. Therefore, it could not be that they could time that the end of Leviticus be before Pentecost and the end of Deuteronomy at the end of the year every year. The question therefore returns: why did the sages ordain that each section of curses be read at a specific time of year?
The answer, I believe, is based on textual clues and cues that appear in both series of curses.
In Leviticus 23:15-17 (in Parashath Emor) we find the commandment to observe the Festival of Shavu’oth, literally, “weeks,” (what we call in English and Greek “Pentecost”, meaning “day fifty,”) which is also described as the day of the Bikkurim, the first fruits:
You shall count for yourselves from the day after the sabbath, from the day that you brought the sheaf of the waving; seven weeks that shall be complete. Until the morrow of the seventh week shall you number fifty days; and you shall present a new meal-offering unto the Lord. You shall bring out of your dwellings two wave-loaves of two tenth parts of an ephah; they shall be of fine flour, they shall be baked leavened, for first-fruits unto the Lord.
This section is the source for the commandment to count every day of the Omer. Each seven days add to a week, and the sages concluded that we should keep a running count of total weeks and days until the count is complete and the fiftieth day is to be a holiday. (Note also how this section describes the communal “first-fruit” offering; the offering of individuals is described later.)
Then in the next Parasha, B’har, we encounter another series of seven sevens adding to fifty (25:8-10):
And you shall count seven sabbaths of years for yourself, seven times seven years; and there shall be for you the days of seven sabbaths of years, [a total of] forty and nine years. Then you shall sound the blast of the horn on the tenth day of the seventh month; in the day of atonement shall you sound with the horn throughout all your land. You shall sanctify the fiftieth year and proclaim liberty throughout the land unto all its inhabitants; it shall be a jubilee unto you; and you shall return every man to his possession, and you shall return every man unto his family.
Finally, the next chapter, the curses we mentioned above, has another recurring theme of sevens: seven sets of punishments, which are meant to “chastise you seven times for your sins.” The ultimate punishment, the desolation of the land, comes to atone for “walking with God in qeri, happenstance,” and for all the Sabbatical years that went unobserved.
Thus, the text of Leviticus thematically connects its curse with the holiday of Pentecost. What does it mean to walk with god in happenstance? This is an expression God told Moses to communicate. In Moses’s own words, in the curses in Deuteronomy, Moses describes the wrong way to worship God as “not serving the Lord your God in happiness.” Someone who is faithful sees God’s hand and providence in history, and attributes nothing to coincidence. His religious experience is one of joy. The festivals and the commandments related to them are meant to bring the people to the state of happiness. This is explicated at the beginning of Ki Thavo which introduces the curses of Deuteronomy (26:2-10)
You shall take of the first of all the fruit of the ground which you shall bring in from your land that the Lord your God gives you, and you shall put it in a basket; and you shall go unto the place which the Lord your God shall choose to cause His name to dwell there… You shall set it down before the Lord your God, and prostrate yourself before the Lord your God. You shall rejoice in all the good which the Lord your God has given unto you and your household, you, and the Levite, and the stranger that is in your midst.
Thus, both sets of curses are preceded by the commandment to bring the first fruits, which is meant to bring the Jewish people to a state of happiness in the service of God, the state that allows them to enjoy the blessings and avoid the curses, and on this point alone, we could understand why either set could have been chosen for the public reading leading up to Pentecost or Rosh Hashana, but because the curses in Leviticus are more directly connected to the seven-sevens theme leading up to Pentecost, they were prescribed for that season.
Question: It says in Parashath B’ha’aloth’cha (Numbers 10:1-10) that Moses was to make himself two silver trumpets and have them blown thusly:
When they shall blow (w’thaq’u) with them, all the congregation shall gather themselves unto you at the entrance of the tent of meeting. And if they blow (yithqa’u) with only one, then the leaders, the heads of the thousands of Israel, shall gather themselves unto you. And when you blow an alarm (t’ru’a), the camps that lie on the east side shall take their journey. And when you blow an alarm (t’ru’a) a second time, the camps that lie on the south side shall set forward; they shall blow an alarm for their journeys. But when the assembly is to be gathered together, ye shall blow (tithq’u), but you shall not sound an alarm (lo-thari’u).
We see that God commanded that t’qi’oth be blown when Moses needed to assemble people and t’ru’oth (accompanied by t’qi’oth, similarly to the way we blow t’ru’oth on Rosh Hashana – Rashi) were to be blown when the people marched. Why did He have to command it that way? Couldn’t God have left it to Moses (and the Leaders) to devise their own signals, say t’ru’oth for assembly and t’qi’oth for marching, or some other combination?
Answer: I have not seen this explicitly elsewhere, but I believe the answer lies in the traditional difference between the t’qi’a, which is traditionally a long, simple sound, and the t’ru’a, a complex sound. Note how the JPS translates the t’qi’a as either a blow or a blast, while the t’ru’a is translated as an alarm. That is not mistake. The Talmud reports how the identity of the sound of the t’ru’a was eventually the subject of controversy: was it what we now call sh’varim, what we call t’ru’a, or what we call sh’varim-t’ru’a? What is agreed upon is that the sound is complex, and certainly not the simple sound known forever as t’qi’a. The t’ru’a is the sound we are commanded to blow on Rosh Hashana, and out of doubt we sound all three possibilities, and each variation of t’ru’a is preceded and proceeded by a t’qi’a. The t’r’ua is the sound that has meaning. In the subsequent verses we read:
And when you go to war in your land against the adversary that oppresses you, then you shall sound an alarm (waharei’othem) with the trumpets; and ye shall be remembered before the LORD your God, and ye shall be saved from your enemies. Also in the day of your gladness, and in your appointed seasons, and in your new moons, ye shall blow (uthqa’tem) with the trumpets over your burnt-offerings, and over the sacrifices of your peace-offerings; and they shall be to you for a memorial before your God: I am the LORD your God.
That is, the t’ru’a is the sound we are to make when trouble is afoot, whereas the t’qi’a is an expression of Joy. The t’ru’a is a sound that is supposed to wake us up and alert us to the fact that we have to pray. There is much that our sages have to say about this with regards to the sounding of the t’ru’a on Rosh Hashana. I am reminded of the story Rabbi Soloveitchik would tell of the Lubavitcher Hasid who cried before sounding the shofar; I am also reminded of the closing benediction of the shofaroth prayers, “Blessed art Thou, Who heareth the sound of the t’ru’a of His people, Israel, with mercy.” Similarly, in the third chapter of Tractate Ta’anith, the t’ru’a is the sound that accompanies the prayers in times of war or drought, while the t’qi’a is used for assembly.
Moses was given the commandment to make and use these trumpets while the people were still encamped at Horeb and preparing to march to the Hoy Land and make war. Their camps were placed into military formation. War is a time of trouble and danger, so it fitting that t’ru’a be sounded when the camp was to begin marching. I believe that Moses understood this implicit message, because a few verses later it says:
And it came to pass, when the ark set forward, that Moses said: ‘Rise up, O Lord, and let Your enemies be scattered; and let them that hate You flee before You.’
That is, Moses saw that the time for marching was a time for prayer.
This is the law of the nazirite: On the day the term of his nazirite vow is completed, he shall present himself at the entrance to the Tent of Meeting. He shall bring his offering to the Lord: one unblemished lamb in its first year as a burnt offering, one unblemished ewe lamb in its first year as a sin offering, and one unblemished ram as a peace offering.
The original Hebrew word for sin offering is hattath. The root of the word, het-tet-alef also spells the traditional Hebrew word for sin, heit, and the hattath is elsewhere prescribed as the offering to atone for a number of sins (Leviticus 4).
But has the nazirite actually sinned in some way? Various answers are offered: that he sinned by ending his term as a nazirite (Nahmanides), or that he had sinned by depriving himself of wine (N’darim 10a).
It seems that according to the p’shat, the nazirite has not sinned, but rather the term hattath must be better understood. The root het-tet-alef in Hebrew also means a form of purification by purging (e.g., in Leviticus 14: and Ezekiel 43:22), and is even the modern Hebrew root for sterilization. Similarly the Hebrew root kaf-pei-reish not only means atonement, it also means to physically scour or purge (also a few times in Ezekiel 43), and is the verb classically used to describe the act of “kashering”vessels that were used to cook sacrificial meat. The hattath of the nazirite, like other hatta’oth, comes to scour (l’chappeir) a certain factor from the nazirite’s soul. Ordinarily, the hattath removes the “stain” of the sin, but in this case, the hattath removes the holiness the nazirite obtained during his term of service.
Concerning the taking of grapes growing on a vine standing in private property but jutting out into the public domain. Can passerby eat of the fruit as a snack? I formulate the question that way because I will not yet approach the issue of separating tithes, etc. from those fruits.
Now, my goal in writing this is to show that the answer that I have heard to above question, namely “yes,” fits with the way Rabbi Joseph Karo understood the relevant talmudic sources, and can be and has been relied upon in practice.
The discussion in Bava M’tzi’a 107a (“R’ Judah said to Rabin b. R’ Nahman”) concerning a fruit tree close to or on the border between two private domains seems to indicate that the halacha is as Maimonides rules in Neighbors 4:9, that the owners of the domains both have rights to the fruits. This ruling is quoted verbatim in Hoshen Mishpat 155:29 and in 167:2, but in the latter case, note that the Rema adds that if the tree is actually standing in the property of one but only has branches jutting into the domain of the other, the fruit belong entirely to the one in whose domain the tree stands. We see that the Rema makes a distinction between a tree “on the border” and one that is certainly not. The fruit of the former is “split” among the owners of the domains, whereas the latter belongs entirely to the owner of the tree. We also see that Maimonides and the Shulhan Aruch make no such distinction.
The Vilna Gaon writes that the source for the Rema’s distinction is Bava Bathra 27b, which was first brought into the discussion by the Tosafists. The Tosafists say that in the case on Bava M’tzi’a 107a, it can not be that if a tree is standing entirely within someone’s domain, then the neighbor should have a right to any of the fruit on the branches that cross the border, although Rashi seems to understand that it can be. The Gemara in Bava Bathra 27b introduces the idea that a tree feeds from the ground within a 16 cubit (that would be well over 20 feet!) radius of its trunk. If the border between two private domains is within that radius, then the tree would feed from both sides of the border. The Tosafists seem to understand the second (and presumably halachically accepted) version of Rabbi Yohanan’s subsequent statement as meaning that the one in whose domain the tree stands is not only not considered a “thief” for having his tree draw from the property of others, all of the tree’s fruits, even those that grow on branches jutting over the border into the domain of the other, are his to the extent that he brings bikkurim from them, and that is a “stipulation of Joshua.” If he brings from all of the tree’s fruit as bikkurim, they must all be his, and therefore, any tree under discussion on Bava M’tzi’a 107b must practically be on the border for us to entertain that the owner of the other domain has a right to some of the fruit.
I believe that Rashi, Maimonides, and the Shulhan Aruch do not subscribe to the Tosafists’ and Rema’s distinction because they believe that Bava Bathra 27b is not discussing who has the legal right to the fruits (possession, etc.), but rather is pointing out that even though the fruits are technically to be divided between the owners of both domains because the border is within the tree’s 16-cubit radius, only the one in whose domain the trunk is standing may bring bikkurim, and that is the novelty of Joshua’s stipulation. This seems to be way Maimonides rules in his own Bikkurim 2:11. As for the law concerning who can bring of those fruits as bikkurim, we have seen from the first chapter of Tractate Bikkurim that the standard of ownership for that law is much higher. It is not sufficient that the fruit be legally his, even to the extent that he must be the one to tithe that fruit. Rather, the fruit also has had to grow on “his” land, and therefore, in the eyes of the Shulhan Aruch, et al., any argument for or against ownership brought from sources specifically discussing bikkurim should be irrelevant to our question.
This concerns a tree that approaches the border of another individual. As for a privately owned tree whose branches jut into the public domain, the last Mishna in Bava Bathra Chapter 2 (also on 27b) mentions the right of individuals to even cut down said branches in order to make room for their passing beasts. This is codified in Torts 13:26. Now, what if those branches have fruit on them? We find nowhere in the early sources that the cutter should be concerned or liable for the loss of value to the tree or the destruction of its fruit. For example, why do we not find that the owner of the tree can demand that the branches only be cut once its fruits have ripened? Destroying the branches before they ripen will of course make them worthless. Similarly, we do not find that the cutter must then trouble himself to go and gather whatever fruit there may have been and bring it to the owner. The right of any member of the public to destroy those branches seems to indicate that the branches and what grows on them are in his “possession.” This halacha is also brought in Hoshen Mishpat 417:4, where the author also mentions that the owner of the tree is not even given notification that branches of his tree are to be cut down.
However, the Shulhan Aruch, (Hoshen Mishpat 260:6) in discussing lost and found property, gives a number of cases whereby ownership of a found item can be assumed due to the item’s location:
“A fig tree that leans into the [public] path and figs were found underneath it: they are permitted [to the finder] because the owner of the tree despairs of recovering them because figs and the like become ruined when they fall, but olives and carobs and the like would be forbidden [under similar circumstances]…”
This law, although it would allow for taking grapes that had already fallen (I am assuming that grapes are fig-like in their susceptibility to spoilage) does not allow for taking all types of fruits, and neither figs or the like that are still attached. The status of fruit is contingent on the owner’s despair or allowance, implying that if neither are present, the fruit are entirely his. However this rule also leaves open a large theoretical door for societal allowance and/or “Law of the Land,” i.e., if societal conventions or state law would declare any and all such fruits as free for the taking, then even if an owner had specified intent not to allow others to take of those fruits, others would be allowed to. Note also the corresponding passage in the Concise Code of Jewish Law 182:15, where the standard for passerby having the right to take of the fruit is even lower: If they are the type of fruit that fall down and become ruined, or if the animals that frequent the place can eat them. This would seem to be the basis for the rule that I was taught, namely, that in our communities, the grapes etc. that grow from private yards but are in practice within the public domain, may be taken and eaten by passerby, because if they don’t, the birds and lizards will.
The Israeli Lands Law, 5729, can be found here, http://www.knesset.gov.il/review/data/heb/law/kns6_land.pdf, 8:4:50, but note that the law allows passerby to take from fruit that has already fallen. It makes no mention of fruit that has yet to fall.
Further, and to me this is the most important part, I do not believe that this law (Hoshen Mishpat 260:6) is discussing our case at all. Notice that it is included here, and in MT Theft and Found Property 15:16 concerning exactly that: lost and found property. See the source discussion, Bava M’tzi’a 21a-b, which is less about assuming that these fruits fell right from the branches above them, but more about determining that because this fig tree (or vine) is adjacent to the public domain, it indicates that those figs on the street are some of those that the owner had already picked and gathered from that very tree, and the novelty of the teaching is that the right of a finder to keep those fruits would depend on the hardiness of the fruit, but if we were discussing fruit that was actually growing or had grown over the border and in the public domain, then those are not owned by the owner of the tree. Interpreting the Gemara, Maimonides, and the Shulhan Aruch this way avoids a contradiction to which I alluded earlier: If a passerby were sometimes within his rights to destroy those branches and their fruits, why would he suddenly have to treat those fruits as owned by someone else?